Estate of Rafferty

1 Foster 383

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: November 15, 1873
• Status: Published

Opinion

Opinion delivered November 15, 1873, by

Peirce, J.

James Rafferty died in 1858, leaving issue three children, Sarah, William, and James, and his wife Catharine, whom he appointed executrix. lie devised one-third of his real estate to his wife, and two-thirds to his sons, William and James, and the survivor of them. He provided for his daughter otherwise. The decedent’s two sons died in their minority, the eldest and survivor of them on the 16th of January, A. ■D. 1872.

In April, 1872, M. A. Kane, as assignee of Patrick Harvey, present•ed his petition to the Orphans’ Court, setting forth that the decedent in his lifetime had made a written agreement with the said Harvey, on certain conditions therein set forth, for the sale of the said real estate to the said Harvey, and praying the court to decree a specific performance of the said contract. An answer was put in by the executrix admitting the facts set forth in the said petition, and submitting to the adjudication and decree of the court. And thereupon,-on April 20th, 1872, a decree of specific performance was made as prayed for.

On the 17th of September, 1871, the petitioner, Chas. W. Zimmerman bought at sheriff’s sale the property northeast corner of Seventh street and Passayunk Road, part of the real estate of which the said decedent died seised, as the property of Catharine Mellwain, formerly Catha-rine Rafferty, on a judgment against her, which was conveyed to him by sheriff’s deed, dated September 21st, 1871.

On May 4, 1872, Chas. W, Zimmerman presented his petition to the court praying that the said decree of specific performance be vacated on the ground of want of notice to him, and some alleged inconsistencies referred to in said petition. To.this petition answers were put in by the executrix and M. A. Kane, in whose favor the decree of specific performance had been made, and the case is submitted on petitionf answers and proofs.

This case seems to be ruled by the case of Weyand v. Weller, 3 Wright, 443, in which Thompson, J. said: “It seems to have been forgotten that the orphans’ court is a court of limited jurisdiction. Its jurisdiction is well defined, and while it has unquestionable jurisdiction to decree the execution of contracts of decedents, yet it would be difficult to find its authority to entertain bills by strangers to such decrees to rescind its orders for specific execution.”

Furthermore, it is not very apparent how the interests of the petitioner have been affected by this decree for a specific performance. Whatever his rights are they were acquired before the proceedings for the specific performance were commenced. And if he was a purchaser for a valuable consideration, without notice, upon a valid judgment against the devisee, his rights, whatever they may be, would seem to be independent of the proceedings in the orphans’ court for the decree of specific importance.

The petition is dismissed with costs.